Is Working From Home Unethical? Telecommuting And Unauthorized Practice Of Law

Michael E. McCabe, Jr.ABA Model Rules of Professional Conduct, Patent Ethics, Unauthorized Practice of LawLeave a Comment

I have lived and worked in the Washington, D.C. metro area my entire adult life.  Washington is notorious for its traffic. The math for my office commute is simple.  Ten hours per week.  500 hours per year.  For 30 years.  That’s 15,000 hours–or 1.71 years of my life–just going to and from the office.

I know I am not alone.  Many lawyers, especially those who live and work in traffic-congested cities, spend far too much time going to “the office.”

But change is upon us.  Traditional notions of what constitutes a “law office” have eroded. The culprit (or savior) is innovation coupled with a burning desire to regain some measure of quality of life, flexibility and autonomy.

One bar notes that, “[a]s a result of ever increasing innovations in technology, the world has moved significantly toward internet communications – through email, chats, blogs, social networking sites, and message boards. The legal services industry has not been untouched by these innovations and the use of technology, including the internet, is becoming more common, and even necessary, in the provision of legal service.”  The State Bar of California Standing Comm. on Prof. Resp. and Conduct, Formal Opinion 2012-184 at 2 (2012) (“Cal. Op.”).

Lawyers who practice in a traditional law firm office environment are often also practicing in a virtual office environment, whether they recognize it or not.  To be sure, home computers connected via the internet into the office network, coupled with home office hardware as well as smart phones, pads, laptops and other mobile communication and computing devices, essentially turn every “brick and mortar” practicing lawyer into a kind of hybrid—practicing traditionally when in the usual office environment while “telecommuting” or working virtually at other times, such as from their homes or from the road.

And then there are those lawyers who have foregone the traditional law office trappings altogether for a full-time virtual law office (or “VLO”).

What exactly constitutes a “VLO” depends upon who you ask. See ABA Journal, Lawyer’s Definitions of Virtual Practice Vary, But Not When It Comes to Finding Success (April 2014). An ABA survey published in 2014 asked lawyers themselves what they believed were the defining characteristics of a “virtual practice.” The majority (58%) said it was the lack of a traditional physical office; 52% said it was minimal in-person client contact; 46% characterized it as an environment that utilizes web-based tools for client communications; and 18% defined the VLO as one that utilized a secure client portal/extranet. See id.

The bar associations themselves have expressed different views on what, exactly, constitutes a VLO. Some authorities, for example, define the virtual law office as “a law office that exists without a traditional physical counterpart, in which attorneys primarily or exclusively access client and other information online, and where most client communications are conducted electronically, e.g., by email, etc.” See Ethical Obligations on Maintaining a Virtual Office for the Practice of Law in Pennsylvania, Pa. Bar Assoc. Formal Op. 2010-200 (2010). Other bars use the terms “virtual law office” or “VLO” interchangeably with terms such as “Digital Law, Online Law, eLawyering and Lawfirm 2.0” and they consider this form of office to be one in which legal services are provided “exclusively, or nearly exclusively, through the law firm’s portal on a website, where all of the processing, communication, software utilization, and computing will be internet based.”  See Cal. Op. 2012-184 at 2.

Still other bar associations define the VLO more like a type of non-traditional “office sharing” arrangement, i.e. “a physical location that offers business services and facilities, such as private or semi-private work spaces, conference rooms, telephones, printers, photocopy machines, and mail drop services to lawyers” typically for a monthly or other periodic fee. Use of a Virtual Law Office by New York Attorneys, N.Y. Prof. Ethics Comm. Formal Op. 2014-2 at 2 (June 4, 2014).

my-remote-officeBenefits of the Home or Virtual Law Office

Many benefits can be realized by utilizing a VLO model. Primary among them is that a VLO allows a lawyer to work untethered to the brick and mortar traditional office.  Often the best VLO is a home office, although the remote practice of law can be carried out anywhere that has access to the Internet. Many VLO models work by offering clients the ability to discuss matters remotely with little or no face-to-face communications, such as exclusively via email, telephone or Skype; to download and upload documents for review using online services like DropBox; and to handle invoicing, payment, and other law-related or business transactions electronically, without the time and expense of travel or the overhead associated with a traditional law office.

The VLO may offer a low overhead solution for lawyers who want to be on their own yet cannot afford the costs associated with a traditional brick and mortar office. The VLO model also provides lawyers with flexibility with where they live and work. A lawyer who practices from an office in New York City may prefer to practice law from their home office, or at the beach, or at a remote cabin in the woods.

Whether a lawyer is a senior partner practicing from a spacious corner office on Park Avenue for an AmLaw 50 law firm, or is a sole practitioner working from the comfort of their Key West condo makes no difference ethically: in either case, the rules of professional conduct apply. See, e.g., Cal. Op. 2012-184 at 2 (the “Rules of Professional Conduct do not impose greater or different duties upon a VLO practitioner operating in the cloud than they do upon an attorney practicing in a traditional law office.”)

Because of the nature of their practice, however, the VLO or home office practitioner may face some additional (or at least different) ethical issues than does his brick and mortar counterpart.  Id. at 7 (observing VLO attorney “may be required to take additional steps to confirm that she is fulfilling her ethical obligations due to distinct issues raised by the hypothetical VLO and its operation.”)

At least one nationally-recognized ethics expert commented recently that while “the spread of electronic communications has made it much easier to practice ‘virtually’ where the lawyer does not physically sit,” the “ABA and state bars have wrestled with applying traditional ethics rules to such a [virtual practice] scenario.” T. Spahn, The Ethics of Emails and Social Media: A Top Ten List (Nov. 28, 2016).

Unauthorized Practice of Law And The Home Office

One concern about practicing remotely is location.  If you want to move down the road less traveled  and set up a virtual shop, you need to think about whether you are engaging in the unauthorized practice of law.

Such UPL issues arise, generally speaking, in one of two different contexts: (1) you are physically located (albeit virtually) in a state in which you are not licensed to practice law but are providing legal services to and for clients who themselves are physically located in a state in which you are licensed to practice; or (2) you are licensed in the state of your virtual law office but you are providing legal services to clients who are located in a state where you are not licensed.

What if, for example, our New York attorney decides they have had enough of the city life and prefer to work full-time from a VLO located in their home office in Connecticut? The attorney is licensed in New York but not licensed in Connecticut. Can they practice from home without engaging in the unauthorized practice of law? Or say our lawyer is licensed in Connecticut, the home of their virtual office, but they are providing legal services for a client located in a jurisdiction in which they are not licensed. Is this a problem? The answer is: Maybe.

laptop-workSperry and USPTO Practice from Any Location

Let us assume for purposes of analysis that our lawyer in the Connecticut-based “virtual” law office practices exclusively before the United States Patent and Trademark Office. Thankfully for this practitioner, the Supreme Court of the United States has addressed the UPL question favorably. See Sperry v. Florida, 373 U.S. 379 (1963).

In Sperry, the Supreme Court of Florida permanently enjoined a patent agent from practicing patent law in Florida because the agent was not a member of the Florida bar and thus was engaged in the unauthorized practice of law. Id. at 381.

The United States Supreme Court reversed. The Court held that the Supremacy Clause of the U.S. Constitution proscribed Florida from enjoining practice before the USPTO.  The Court held:

A State may not enforce licensing requirements which, though valid in the absence of federal regulation, give “the State’s licensing board a virtual power of review over the federal determination” that a person or agency is qualified and entitled to perform certain functions, or which impose upon the performance of activity sanctioned by federal license additional conditions not contemplated by Congress. “No State law can hinder or obstruct the free use of a license granted under an act of Congress.”

Id. at 385; see generally Kennedy v. Bar Ass’n of Montgomery County, Inc., 316 Md. 646 (1989) (following Sperry and modifying an injunction against the unauthorized practice of law to permit a foreign attorney to continue to practice exclusively before the Maryland federal courts to which he was admitted to practice).

The Virginia State Bar has also published guidance on the right of attorneys and agents to practice before a federal agency without requiring a Virginia law license. Specifically, in Virginia UPL Opinion 201, Virginia’s Unauthorized Practice of Law Committee addressed the issue of a foreign (i.e. non-Virginia) lawyer maintaining an office in Virginia and found that this would not be unauthorized practice if:

1) the lawyer advised clients on matters involving the law of the jurisdiction in which he/she was admitted to practice; or

2) the lawyer advised and prepared legal documents for a client concerning matters involving federal law for cases before a federal court or agency to the extent the federal matter did not impact Virginia law and to the extent Virginia legal issues were not involved; and provided “any law firm letterhead stationery or other public communications identifying the lawyer as practicing in the Virginia firm [denoted] the limitations on that lawyer’s practice,” i.e. where the lawyer is licensed to practice.

Va. UPL Op. 201 (2001)

And while Sperry specifically dealt with the practice of patent law before the USPTO, its principles have been extended to permit any practice permitted before a federal agency, which includes the practice of trademark law before the USPTO. See, e.g. Va. UPL Op. 2010 (2006) (applying Sperry and explaining that Virginia’s UPL rules allow a non-Virginia lawyer working from an office in Virginia to furnish legal advice and services and prepare legal instruments for another “with regard to practice before a federal” agency “as permitted by the rules of such agency….”)

traditional-officeNon-USPTO Practice

For those not engaged in practice before the USPTO, the analysis of whether their practice from a virtual office constitutes the unauthorized practice of law can become complex. Consider as a starting point in any multi-jurisdictional analysis the language of ABA Model Rule 5.5, which provides as follows:

a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
(4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, or a person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that:
(1) are provided to the lawyer’s employer or its organizational affiliates, are not services for which the forum requires pro hac vice admission; and when performed by a foreign lawyer and requires advice on the law of this or another U.S. jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or
(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.

(e) For purposes of paragraph (d):
(1) the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and subject to effective regulation and discipline by a duly constituted professional body or a public authority; or,
(2) the person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction must be authorized to practice under this rule by, in the exercise of its discretion, [the highest court of this jurisdiction].

ABA Model Rule 5.5.

As indicated above, ABA Model Rule 5.5(b)(1) prohibits an out-of-state lawyer (other than an in-house lawyer) from establishing an office or other systematic and continuous presence in this jurisdiction for the practice of law. ABA Model Rule 5.5(b)(1). Comment [4] indicates that such a presence “may be systemic and continuous even if the lawyer is not physically present here.” Thus, the ABA Model Rules recognize that a lawyer may impermissibly engage in the “systematic and continuous” unauthorized practice of law in another state without ever traveling there.

laptop-officeThis provision could certainly implicate the non-USPTO practitioner who decides to set up a virtual office—a systematic and continuous presence—in a jurisdiction in which the lawyer is not licensed. This provision also could implicate the lawyer who, while practicing (virtually or otherwise) from a jurisdiction in which they are licensed, engages in a systematic and continuous practice in a jurisdiction in which the lawyer is not licensed.

How far one can go before the lawyer crosses the threshold of authorized to unauthorized practice can be in the eyes of the beholder. The Restatement, for example, specifically indicates that lawyers may communicate electronically into other states where they are not licensed:

It is also clearly permissible for a lawyer from a home-state office to direct communications to persons and organizations in other states (in which the lawyer is not separately admitted), by letter, telephone, telecopier, or other forms of electronic communication.

Restatement (Third) of Law Governing Lawyers § 3 cmt. e (2000).

The Restatement also approves lawyers’ providing opinions about the laws of states in which they are not licensed:

[A] lawyer conducting activities in the lawyer’s home state may advise a client about the law of another state, a proceeding in another state, or a transaction there, including conducting research in the law of the other state, advising the client about the application of that law, and drafting legal documents intended to have legal effect there. There is no per se bar against such a lawyer giving a formal opinion based in whole or in part on the law of another jurisdiction, but a lawyer should do so only if the lawyer has adequate familiarity with the relevant law.

Id.

That said, state regulators can be very territorial when it comes to what types of activities constitute the impermissible practice of law. Indeed, physical presence in a state—while certainly a factor in the UPL calculus—is not necessary for a court or bar to find that a lawyer has engaged in the unauthorized practice of law in that state. See Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 949 P.2d 1, 5-6 (Cal. 1998) (“Our definition [of UPL] does not necessarily depend on or require the unlicensed lawyer’s physical presence in the state. Physical presence here is one factor we may consider in deciding whether the unlicensed lawyer has violated section 6125, but it is by no means exclusive. For example, one may practice law in the state in violation of section 6125 although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means. Conversely, although we decline to provide a comprehensive list of what activities constitute sufficient contact with the state, we do reject the notion that a person automatically practices law ‘in California’ whenever that person practices California law anywhere, or ‘virtually’ enters the state by telephone, fax, e-mail, or satellite.”)

The complexity and risk associated with UPL is illustrated in a Delaware Supreme Court action captioned In Re Tonwe, 929 A.2d 774 (Del. 2007). The attorney was barred in and maintained an office in Pennsylvania, near the Delaware border. The attorney represented scores of clients in Delaware without associating with local Delaware counsel. Many of the attorney’s clients were: (1) Delaware residents, (2) involved in Delaware car accidents, and (3) seeking recovery under Delaware insurance policies. Ms. Tonwe did everything short of appearing in Delaware courts, and engaged Delaware attorneys as co-counsel only if she could not resolve the matter without litigation.

The Delaware Supreme Court held that Ms. Tonwe established a systematic and continuous presence in Delaware for the practice of law in violation of Del. Rule 5.5(b). Id. at 779-80. As a result, Ms. Tonwe was disbarred from Delaware—even though she was not, technically, a member of the Delaware bar.  See id. at 780-81.

work-from-homeMulti-jurisdictional practice expert Tom Spahn has written extensively on the issue.  See T. Spahn, Defining What Lawyers Do and Where They Can Do It, Part II. Mr. Spahn notes that the issue of what constitutes a “virtual” presence does not necessarily involve only possible downside risks for lawyers. A lawyer might choose to live in one state where she is not licensed, while continuously practicing — “virtually” — in a state where she is licensed. Id. at 50. In that scenario, the lawyer rather than the bar would have an interest in rejecting the old “physical presence” standard, and instead focus on the “virtual” practice factors. Id. at 51. This issue was noted by the ABA Ethics 20/20 Commission as follows:

Conversely, a lawyer may be licensed in one jurisdiction, but live in a jurisdiction where the lawyer is not licensed. If the lawyer conducts a virtual practice from the latter jurisdiction and serves clients only in the jurisdiction where the lawyer is actually licensed, there is a question of whether the lawyer has a “systematic and continuous” presence in the jurisdiction where the lawyer is living and thus violates Rule 5.5(b) in that jurisdiction. The Rule is unclear in this regard as well.

See id. at 51 (quoting Am. Bar Ass’n Comm’n on Ethics 20/20, Introduction and Overview, at 10 n. 27 (Feb. 2013)).

Mr. Spahn observes that the ABA Ethics 20/20 Commission primarily focused on the rising use of electronic communications in the practice of law, and the increasing mobility of lawyers. Thus, one would think that the issue of a “virtual” continuous presence in another state would have been an obvious choice for proposed rules changes. After much debate, it was decided that the 20/20 Commission would make no proposal in this area and instead it referred the issue to the Standing Committee on Ethics and Professional Responsibility for an opinion on the meaning of “systematic and continuous presence” in the context of virtual law practice as the nature of virtual law practice becomes clearer and as relevant technology continues to evolve.  Am. Bar Ass’n Comm’n on Ethics 20/20, Introduction and Overview (Feb. 2013).

Summary

The increasing use of electronic communications and the ease with which lawyers may practice “virtually” in another state obviously have enormous ramifications for the multijurisdictional practice issue. As explained above, the Restatement points to this dramatic development as justifying a principle that would allow a lawyer licensed in one state to practice in other states without joining those other states’ bars. However, it is up to the states to control who can practice within its borders, and plainly some states are more protective than others in determining whether an individual who crosses the border—virtually or otherwise—engages in the unauthorized practice of law.

This is an area for future uncertainty that is sure to develop as technological innovations continue and lawyers desire increasing flexibility in where they work.

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